2205260 (Refugee) - [2024] ARTA 787

2205260 (REFUGEE) [2024] ARTA 787 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2205260
Tribunal:General Member B Butler
Date:19 December 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 19 December 2024 at 3:26pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – fear of harm from high-profile person and gang – overheard discussion about high-profile murder – threatened and attacked – credibility – inconsistent and implausible claims and evidence – returned to same employment after working in another country – religion – Muslim – mental health – country information – no profile of interest to authorities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant is a [Age]-year-old man who is a national of Sri Lanka. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 2 February 2017. The delegate refused to grant the visa on 21 March 2022.
The applicant appeared before the Tribunal on 9 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
Evidence before the Department
The applicant set out his claims for protection in his protection visa application and a statement submitted to the Department on 6 March 2017. These claims are summarised as follows:
·He was born in [District], [Town] in the Eastern province of Sri Lanka. He is a Muslim.
·He is afraid to return to Sri Lanka because Yoshitha Rajapaksa, who is the son of the former President, Mahinda Rajapaksa, and his gangs want to kill him. They want to kill him because he is a Muslim and they believe he would be a threat to them due to the change of government and the reinvestigation into the murder of Wasim Thajudeen, a Sri Lankan Muslim rugby player. They want to kill him to protect Yoshitha from being convicted for Thajudeen’s murder.
·The applicant worked at the [Workplace 1], a [hotel], where elite political gangs and dignitaries meet. He obtained a job at the hotel in August 2009 and worked there until June 2014.
·The applicant was working as a room boy and attendant in the hotel. One day he witnessed Yoshitha in a guest room with his killer gang. The applicant was serving them food and cleaning their room when he overheard them talking about the murder of Thajudeen. They knew that the applicant had heard everything that they had said. He described their attitude as ‘wild’. They reacted violently and said not to tell anyone about what he had heard. They had weapons and were drinking alcohol at the time. They warned him that he would be killed if he told anyone about what he had heard.
·The applicant informed the duty manager about the incident and thought he would be safe. The next day he realised his life was in danger because the duty manager had told Yoshitha about everything the applicant had told him.
·When he realised they would try to kill him, he fled from the hotel without telling his duty manager. The same day at 11pm there were more than five people who went to his house in Colombo. They threatened his relatives and asked for him. The applicant was away from his home visiting his friend, [Mr A] who lived in [Suburb 1], and discussing whether to inform the police about the matter.
·He decided to make a complaint to the [Colombo] police because the death of Thajudeen was shown to the public as an accident, but he realised it was a murder. The police officer refused to take his complaint and told him he needed to speak to the higher officer in charge. He became scared and ran away from the police station immediately. He lost confidence in the police and realised he was in danger.
·He told his parents about what had happened (at the hotel and at the police station). They advised him to go to a foreign country to protect himself.
·After he came home, the applicant received a phone call from an unidentified caller saying they had received credible information he was going to give information against them. They threatened to kill him, and the caller said that within days he would be dead.
·A few days later, the applicant was going to the mosque for early morning prayers when he was about to be stabbed by three Singhalese youth. He escaped because the people inside the mosque saw the incident and saved him.
·After the mosque incident, the applicant was coming back from work around 2am and went to drink tea outside the hotel and smoke a cigarette. A van stopped near him and asked for an address. They had figured out the time he was getting off work. He noticed there were three to four people inside the van. He realised they were heavily drunk. He said he didn’t know the address and said he wasn’t from the area. Two of the gang members from inside the van grabbed his t-shirt and arm and tried to pull him inside. He thought it was the same gang who tried to kill him at the mosque. He pushed them down and he ran away in the dark. They caught him and hit him on his back. He thought he was dead but a vehicle passed by and they left.
·After the incidents, he became fearful of staying at home and he decided to leave Sri Lanka. The next day he moved to another place where his uncle lives and started living in hiding from one place to another.
·He met an agent who helped him get a job in [Country 1]. He lived in [Country 1] for about two years. After the change in government in Sri Lanka, he thought Sri Lanka would be safe for him. However, the murder of Thajudeen was being discussed in Sri Lanka when he returned in March 2016.
·He rejoined the [hotel], in March 2016 and thought his life would be better. However, four unknown people came to his house and forcefully entered the house looking for him and his relatives. His relatives were terrified.
·Around July 2016, he was shot at by unidentified gangs of the former President’s family members.
·He realised the change of government had not brought real change. His family members forced him to go to a foreign country to live in peace. He had an opportunity to apply for work in an Australian [company] called [Company].
·If he returns to Sri Lanka, it would be a matter of time before he was killed by the interested parties such as Yoshitha’s murderer gang because of his identity as a Muslim and his knowledge about the killing of Thajudeen. He fears harm because of his imputed active involvement as a witness against them for the murder of Thajudeen.
The applicant also submitted a number of documents to the Department, including articles about the investigation into Thajudeen’s death, photographs of the applicant with his duty manager at the [hotel] and of the duty manager with members of the Rajapaksa family, his certificate of completion for a [subject 1] course, his certificates relevant to his work at the [hotel] and text messages in relation to his job on the [workplace].
The applicant was interviewed by a delegate in relation to his protection visa application. The delegate has referred to the interview in their decision record, a copy of which was provided to the Tribunal. In the delegate’s decision, the interview is summarised as follows:
·The applicant was asked to provide details about what he overheard when he was cleaning the hotel room in relation to the death of Thajudeen. He said that he overheard the conversation in November 2013 and that they were saying nobody would be able to speak against them and that they did not have to worry about anything, and that they were talking about a post-mortem report which changed the incident to an accident. He did not know who the people were, but that they might be from the Criminal Investigations Department, politicians or someone else.
·He was asked to explain what he was doing during the conversation between Yoshitha and the other men. He said that he was serving food and drinks, and that it was a two-bedroom suite. He said that they did not see him because he was in another room cleaning, and he was allowed to be in there because he had permission to enter. He clarified that he had knocked on the door, one of Yoshitha’s guests opened it to allow him to deliver food, and he then went to another room to clean it. He said he went in and out three times. He said that the people were drunk at the time and none of the people saw him.
·He was asked to describe how the people realised he was in the room. He said they saw him when he came out from the room. He said they asked him if he had heard anything. He responded that he did not hear anything. They told him that they knew he had heard everything. He said they drew guns on him and told him that they would kill him if he told anyone about what had happened. He was then allowed to leave, and he reported the incident to his manager.
·He returned to work the next day and one of his friends informed him that the manager told Yoshitha what the applicant had told the manager. He realised he was in danger and escaped the hotel. He was asked why he had told his manager if people from the Criminal Investigation Department (CID), politicians or someone else from Yoshitha’s murderer gang threatened to kill him if he told anyone about what he heard. He said it was his duty to tell his manager.
·He said that, after escaping the hotel, he went to his friend’s house and his friend advised him to tell the police. He said he left his friend’s house around 1am and went to the police. He said that he spoke to a police officer who told him it was a serious matter and that he needed to speak to a senior officer. The applicant realised he was in trouble and left the police station.
·He said that after he escaped from the police station, a group of people came to his house around 3am or after 3am looking for him. In his written statement, the applicant said that a group of people came around 11pm to his house. The applicant said that he did not remember the sequence of events. He did not know who had come to his house looking for him.
·He was asked whether anything had happened to him after the group of people came to his house and the threatening phone call. He said that one night after he finished his shift at the [hotel], around February 2014, he had finished his shift and was outside around 2am smoking a cigarette when a van approached him, people from the van asked for his address and that they chased him. He said that in March 2014, when he was walking to the mosque, a group of people chased him and he realised they were the same people who tried to kidnap him after he had finished his shift. He was asked to explain why he said the incident at the mosque happened after the incident after he finished his shift, whereas in his written statement he had claimed that the incident at the mosque occurred first. He responded that he was telling the truth.
The delegate did not accept that the applicant had overheard a conversation about Thajudeen’s death while he was working at the [hotel] because of inconsistencies in the applicant’s account and because he found the applicant’s explanations unsatisfactory. The delegate also had regard to the fact that the applicant returned to the [hotel] and continued working there despite the claimed threat. The delegate also considered that if he faced a threat, it was implausible that he was not located during the time he was in Sri Lanka following the claimed incident given the claimed influence of the Rajapaksas and the reach of the CID. The delegate accepted the applicant is a Muslim but, having regard to country information, did not find he faced harm on this basis.
Evidence before the Tribunal
Pre-hearing submission
Prior to the hearing, the applicant’s representative provided a submission written by Anthony Krohn, barrister, dated 2 December 2024. The submission outlined the applicant’s claims and noted that the applicant’s credibility in respect of his central claim that he overheard discussion about the concealment of a murder is critical to the application. It was argued that the inconsistencies detected by the delegate were not significant and not truly inconsistent. On 5 December 2024, the applicant’s representative emailed the Tribunal to correct a typographical error in the submission about the date of the claimed incident in the hotel room.
The applicant also submitted a letter from [Psychology clinic], dated 18 November 2024. His psychologist reports that the applicant presented at the [psychology clinic] on 18 November 2024 for distress relating to his visa application and that further sessions have been booked. He reported to his psychologist that he experiences anxiety which has affected his quality of life and that this began in the last six to twelve months. The psychologist suggests that he may fit the criteria for mixed anxiety and depression. I have considered whether the applicant’s reported conditions affected his ability to participate in the hearing. The applicant was offered breaks throughout the hearing and had his representative with him in the hearing room for support. I found that he was able to understand my questions and present his evidence.
The hearing
Applicant’s background
The applicant gave evidence at the hearing about his background in Sri Lanka. He said he has [brothers]. He is from in [Town], [District], Eastern Province. His parents and his brothers all live in the same village in the Eastern province of Sri Lanka.
He completed high school but did not complete his A levels because he wanted to undertake a [subject 2] course, which he completed at the [Vocational] School in Colombo in 2009. He got a job at the [hotel] in Colombo in August 2009 as a trainee. He was later promoted to a full-time employee. He worked at [the hotel] as a Food and Beverage attendant until June 2014. He said he worked in many sections of the hotel as the hotel has [a number of] restaurants. His duties included delivering food to rooms, cleaning, taking orders over the phone, setting up tables, replenishing the mini bars in rooms, and using the room service trolley.
He said he lived in Colombo with his father’s brother (the applicant’s uncle) and his family. He said that at the time he was young and so he thought that it would be safer to live with his uncle. I asked how long he lived with his uncle for, and he said it was from 2009 to early 2014. I asked him where he moved to after leaving his uncle’s house. He said he moved to many places in Colombo. He said he rented a space in a boarding house, and he also lived with his friend, [Mr A], in [Suburb 1] in Colombo.
I noted that he said he had lived in many places after leaving his uncle’s house, and that he had only provided the details of two places. He said that the where he worked also provided accommodation and he stayed in the dormitory, but he didn’t remember details. In his visa application, he stated that he lived at an address in [Suburb 1] from January 2009 until current. He said that that was [Mr A]’s address in the visa application. I queried why the visa application would state that he lived at the one address in Colombo, which was his friend’s address and not his uncle’s address. The applicant’s representative said that an assistant at the firm would have completed the form based on what the applicant had informed them. The applicant said that as far as he could remember, he lived with his uncle and then lived with [Mr A] for two to three months.
I asked him why he left [Mr A]’s house. He said that he had problems there and that when he was living there, the third incident occurred, when they tried to shoot him. I asked him to provide further details about the incident. He then paused, apologised, and said it was the second incident, which was not the shooting and that happened in March 2014, which was not the shooting incident. He said that they tried to kidnap him in a van and after that he spent time in the hotel dormitory and moved to [Suburb 2] in Colombo.
I asked if he was now saying that he lived in his uncle’s house, then moved to [Suburb 2], then to [Mr A]’s home, then to the hotel and then to [Suburb 2]. He said that he moved from the hotel to [Suburb 2]. He then said that within [Suburb 2] he lived in two places, the first place he moved to was [Suburb 2], and as there wasn’t much space, he moved again. He said that the hotel accommodation was not consistent, and he stayed there for safety.
He said that he left Sri Lanka in June 2014 for [Country 1] and returned to Sri Lanka in March 2016 because he could not apply for residence in [Country 1] and as it was towards the end of his contract, he returned to Sri Lanka. He decided that he wanted to work for a [company] and come to Australia and apply for asylum, so he returned to Sri Lanka for a face-to-face interview with the [company].
I asked him how the interview with the [company] went. He said that the interview and application process to get a job with the [company] took some time, that he was selected and there were processes which required him to remain in Sri Lanka. He said he thought about returning to [Country 1] during that time. He said that he remained in Sri Lanka and left in January 2017, because of the application process for the job with the [company]. He also submitted at the hearing his [occupation]’s logbook.
During the time he was in Sri Lanka from March 2016 until January 2017, he said he lived with a Christian family in an area of Colombo near the institution running the course he was required to undertake for the job with the [workplace]. He said he resumed his job at [the hotel] and also lived in the hotel dormitory at times. He was a part-time employee during this time and worked between 20 to 38 hours a week, depending on how busy the hotel was. During this time, he said that he was a room attendant.
In Australia, the applicant said he has worked in a hotel full-time. He is not married and has no children.
Incident at hotel
The applicant said that when he was at the hotel, the son of the President was in a room with people he didn’t know, around the time of [an event] which took place in Sri Lanka. He said that during that time, they ordered room service and he went to deliver it. He said that it was a 2-bedroom apartment and he knocked on the door, they came and opened the door. He saw the son of the President and four other people in the room. He said he went to deliver the food and the usual routine is to take used dishes out of the room.
I asked him whether he was entering the room to collect dishes from a previous meal or whether he was delivering food. He said that he had to take them out. I asked what time of day he entered. He thought it was between 8 and 9pm.
He then said that he placed the food inside the room and that there were four to five people in the room drinking alcohol. He said there were four to five dishes which he had to put inside the room and so he had to enter the room more than three times to bring all the food in. I noted that he could have brought the trolley inside the room, rather than entering multiple times. He said that the practice was to leave the trolley outside. He said that while he was delivering the food, he went into another room to check whether there were used plates.

He then said that when he entered the room for the last time, he went to check the other bedroom to see if he had to clean anything, and then he saw the dishes, which he took to the trolley and then he came to fill up the mini bar. He said that he wasn’t sure if they were aware of his presence.
I asked him to describe the hotel room. He said it was a two-bedroom apartment, with a living area, washroom, two bedrooms and a kitchen. He said that one bedroom has an ensuite, and the other bedroom has a common area. He said that when he served the food, they all came to the common area, and when he went to the second bedroom nobody came to check on him. I asked him what he was doing there. He said he was clearing glasses and filling the minibar.
He said that when he was in the bedroom, they were discussing an incident which he overheard. I asked him what he heard. He said that in Sri Lanka, a rugby player died and in the media it was reported as an accident but it was a murder and that these people were involved and they were discussing it.
I asked him to tell me what they were saying to each other. He said that they were saying they killed the rugby player, they wanted to make it looked like a car accident, and they were discussing the post-mortem report which stated it was a car accident. He said that they were saying the post-mortem report was completed by their people, and because the body was burnt from the accident, they cannot find anything.
I asked whether they said anything else. He said that they had said they destroyed CCTV camera evidence, and police records. I asked who was saying this. He said he did not see the faces of the people who were talking, and he did not know who they were.
He said that he fears returning to Sri Lanka because he may be considered a witness into the murder of Wasim Thajudeen, and the current government in Sri Lanka is investigating the incident.
I confirmed that he was claiming he heard this discussion while filling the minibar. He said that it happened within three to five mins, and that when he heard it, he became fearful. I asked him whether he tried to leave the room. He said he was trying to leave but they stopped him and asked him where he was. He said that he was in that other room, and two to three people spoke to him, and asked him different questions. He said that one person asked him whether he heard what they were discussing. He responded that he had not heard anything, but then one person said that he had to tell the truth in a threatening tone. He said that they became suspicious of him and said that if he heard anything they would kill him. I asked him what he did in response. He said he was scared and left the room. He added that he told them that he didn’t understand Singhalese.
After he left the room, he said he was stressed and went to the duty manager to report what happened and that he had heard them talking about the murder of Thajudeen and that they had done it and all the evidence was destroyed, and that they had threatened him.
I asked him why, if they told him not to tell anyone and had threatened him, his next action would be to tell someone. He said he was very young at that time, and was also worried that if they talked to the manager, it might affect his employment. He said there were rules in the hotel, and he was honest.
He said that after he told the manager, he continued with his shift and went home to his uncle’s house. He returned to work the next day as usual in the afternoon. He said he was anxious and fearful, and he didn’t complete the shift. I asked him why he didn’t complete his shift and had left work. He said he had received a call from home saying that some people had visited looking for him, that they had spoken in a threatening tone. I confirmed whether that was why he had left the hotel. He said that was the case, and that he was thinking about who those people might be, and that it might be the Rajapaksas. I clarified that while he was at work, his uncle called him. He said that he could only check his phone during breaks, and it was during a break that he saw he had missed calls from his uncle and so when he called his uncle during his break, his uncle told him people had come to the house looking for him, and asked his uncle if the applicant lived there and where he was from. He said that his uncle said he told the people that he was renting and didn’t tell him that he was a relative.
I asked him where he went after he spoke to his uncle. He said that he did not go home and went to meet his friend [Mr A] because he needed a place to stay. I asked him whether he moved to live with [Mr A] at that time. He said that on that day they talked and then he brought his things and moved from his uncle’s place to [Mr A]’s house. I asked when he moved out of his uncle’s place. He said it was the next day. I asked him why he thought he would be safer with [Mr A] than at his uncle’s house. He said that it was because people had visited his uncle’s house and because [Mr A] was his best friend.
I asked him whether he did anything else after the incident. He said he told [Mr A] what happened. I asked whether he continued to work at the hotel. He said that he wasn’t sure who might have told them, so he continued to work there. I asked when he returned to work. He said that he returned two days later and told them he had a toilet accident so that’s why he left without telling anyone. He then worked as normal until June 2014 when he left for [Country 1].
The applicant also later claimed that men went to his uncle’s house twice on the same day (the day after the incident in the hotel room) to look for him when I put some concerns to him that parts of his account given at the hearing were different from what he had claimed in his written statement and before the delegate (these concerns are discussed in detail below).
Other incidents – Mosque, attempted kidnapping and police report
I asked whether there were any other incidents between November 2013 and June 2014. He said that one day he was walking to the mosque for early morning prayers, and that the mosque was located close to the hotel. He noticed a van following him and when he was close to the mosque two people came out of the van and started to chase him. It was dark on the day, and nobody was on the road. He said he was running towards the mosque. I asked where he was coming from. He said he was coming from [Mr A]’s home and he was by himself as [Mr A] is not a Muslim.
I asked him whether the people who chased him said anything to him. He said they didn’t say anything, and that when some people who were in front of the mosque saw him running, they asked him whether there was a problem. He said that two people were chasing him. I asked whether he had reported the incident to the police. He said he didn’t, but then added he had reported the previous one to the police.
I asked him to clarify what he meant. He said that he reported what he heard in the hotel and that people had visited his home. He said that he told the person at the reception desk but did not give a detailed report, and told them a summary. He said that when he was telling the story, the constable said it was a serious matter so he had to talk to senior staff. He added that they asked for his ID and asked him to wait, but he left while he was waiting for the senior staff. He said that they returned his ID.
I asked him why he would try to report it when he had already been threatened. He said that the police are there to protect the public and not just to protect the president, so he thought he had to seek assistance of the police and he felt safe. He said he was young.
I noted that he was saying he thought it was safe to report to the police but he decided to leave without making the report. He responded that when he was at the police station, he received a call from his uncle, and his uncle asked him where he was. He said that he was at the police station to report the report the matter. He said that his uncle asked him whether he was stupid, and said that the police belong to ‘them’. He said it was the call from his uncle that prompted him to leave the police station.
He said that there was another incident. One day he finished his shift at the [hotel], and he went to another hotel nearby for tea and a cigarette. At that time, a van came and stopped near him and showed him an address, and asked him where it was. He said that the people looked similar to the people who had chased him near the mosque. He said that he told them he didn’t know where it was.
I asked him if that concluded the incident. He added that when he was talking to them, two people inside the van came and one held his t-shirt and they tried to get him inside the van. I asked whether he was put into the van. He said that he hit their hand and he ran away down a lane near the hotel and that it was dark. I asked if he was saying he ran into the darkness, and asked where he was running to. He said that they chased him, caught his t-shirt, beat his back. I asked again where he went. He said into the [hotel], and then said his idea was to take transport but he ran into the hotel. I asked him what he did once he was inside the hotel. He said that he was shaken, didn’t tell anyone and went to the dormitory. I asked him when the incident happened. He said it was in 2014, and maybe within a month of the first incident at the mosque, which happened in early 2014. He later clarified that the location where the people had tried to kidnap him was five to ten minutes’ walking distance from the hotel.
I asked whether anything happened to him between the time of the van incident and when he went to [Country 1]. He said that nothing happened, and he continued to work at the [hotel].
He said that he felt safe to be within the [hotel] because it has security, cameras, and [Number] people work there. I noted that the incident with the van happened close to the hotel, and that there would have been security but there was still a security incident and they had tried to kidnap him near a [hotel]. He responded that the incident happened away from hotel, and it wasn’t exactly at the hotel. He added that he didn’t usually take public transport, and he was waiting for hotel transport.
Incident – attempted shooting in 2016
I asked him whether anything of concern happened after he returned to Sri Lanka in March 2016. He said that there was an incident when they shot at him. He said he didn’t know who they were but two people came on a motorbike. He said he had finished work, took hotel staff transport home and that he had been dropped at a junction near his home. He said he was smoking a cigarette when a motorbike came towards him. He said when they came, he stepped back into the narrow lane and they shot at him from the moving bike. He said that it was because he moved that he was not hit by the bullet, and that he ran off into the laneway, but he waited to see whether the motorbike was there before he returned home with another person.
He said that all major incidents were true, and that with God’s blessing he escaped but it can happen at any time.
Fear of harm on the basis of being a Muslim
The applicant said that in Sri Lanka, the Sinhalese are the majority, and because he belongs to the minority Muslim community, they can target him easily. He said that there are political groups which target minorities. He said that his primary concern related to the police and what he faced in Sri Lanka but his religion as a minority also puts him at risk.
His representative submitted that the applicant is in his mid-30s and in Islamic law he has to get married and he has to get money, so he is not an economic migrant because if there was no well-founded fear he would have returned long time ago.
Post-hearing material
The applicant said at the hearing he would like further time to provide material from his friend, [Mr A]. The representative said that the applicant had made contact with his friend two weeks ago as his friend was in [Country 2] and had not been reachable. I note that the applicant made the visa application in February 2017, and he made the review application in April 2022. He was also on notice of the Tribunal hearing from 30 September 2024, and the hearing took place on 9 December 2024. I granted him further time to provide any such evidence. I noted that the weight I could place on any such evidence he provides after the hearing may be affected by my concerns about his evidence given at the hearing (discussed below) and the timing of the provision of such evidence.
The applicant provided a letter from his uncle, [Mr B], dated 12 December 2024. In the letter it is stated that the applicant lived with [Mr B] from 2009 until November 2013. He states that in the middle of November 2013, unknown individuals entered their house twice, and spoke aggressively and threatened them in loud voices and asked whether this was the house were the applicant lived, and demanded to know where he was currently located. He states that he told them that the applicant lived there but he was not present at the time. He states that a few hours later on the same day, they visited the house again, entered without permission and started to look for the applicant. They said that the applicant should not be accommodated there anymore and warned him that their lives would be at risk if the applicant continued to live there. He states that the applicant later visited their house and told him about the incident, and then explained the reason for the visit. He states that their hearts trembled with fear when they heard what the applicant said. They realised that if the applicant remained there, the lives of family members living there would also be at risk. He states that the applicant understood the situation and vacated the house himself.
The applicant also provided a letter from his friend, [Mr A], dated 14 December 2024. In the letter it is stated that [Mr A] and the applicant became friends in 2011 while working at the [hotel], that he received a phone call from the applicant around November 2013 and that the applicant had asked to meet him immediately to report an important matter. He states that the applicant met him at his house in [Suburb 1] and that he shared that an incident occurred when the applicant was delivering room service to a VIP guest room where unidentified individuals who appeared to be drunk were discussing a murder plan related to the rugby player Wasim Thajudeen. He goes on to state that the applicant reported the incident to the duty manager and that the applicant was unaware of the close relationship between the manager and the Rajapaksa family, and that the applicant assumed the duty manager might have informed Yoshitha Rajapaksa about the issue. He concludes that the applicant mentioned that some unknown individuals went to his house, threatened his relatives and inquired about his whereabouts, and that when he heard about this, he advised the applicant to file a complaint at the nearest police station.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion.
For the following reasons, I have concluded that the decision under review should be affirmed.
Applicant’s background in Sri Lanka
I accept that the applicant is a Muslim from the Eastern province of Sri Lanka. Based on the material submitted in relation to his employment at the [hotel] and his testimony at hearing, I accept that he worked at the [hotel] from August 2009 until June 2014, and again from March 2016 until January 2017. I accept that he primarily worked in the food and beverage department, and he delivered food to guests in their rooms.
Incident at the hotel and subsequent events
The death of the Sri Lankan rugby player, Wasim Thajudeen, in an incident in May 2012 has been widely reported in international media, and since at least 2015 there has been speculation that the incident was not an accident and that Yoshitha Rajapaksa was involved.[1] The death of the Thajudeen has been regularly discussed in the Sri Lankan media, investigations are ongoing and the current President has said the government will investigate the case.[2]
[1] Sri Lankan rugby player's body exhumed in murder inquiry - BBC News ( 10 August 2015 (accessed 18 December 2024); Body Exhumed in Murder Probe Involving Son of Ex-Sri Lanka President | TIME ( 11 August 2015 (accessed 18 December 2024).
[2] Wasim Thajudeen: A murder with no murderer - Dm Connect | Daily Mirror ( 12 August 2020 (accessed 18 December 2024); Will probe killings of Thajudeen, Lasantha: President - Breaking News | Daily Mirror ( 9 November 2024 (accessed 18 December 2024).

The [hotel] is a [hotel] in [Suburb 1].[3] I have had regard to the photographs of the Rajapaksas with a person described as the applicant’s duty manager at the hotel, and with the applicant with his duty manager. As a [hotel] in the capital, I accept that politicians and businesspeople would stay at the hotel and use the hotel, and it could be expected that they would take photographs with visiting celebrities and well-known politicians.
[3] [References], accessed 18 December 2024.
While I accept that the applicant worked at the [hotel], I have significant concerns about his primary claim to have overheard a conversation between Yoshitha Rajapaksa and men who were supporters of the government, or who worked for the CID while he was servicing a guest room in November 2013, and the incidents which he claimed followed.
The applicant claimed at the hearing that after being threatened by the men, he informed his duty manager about what he had heard, and that the next day he returned to work. He said that he found out he was in trouble because his uncle had attempted to call him while he was working, and during his break he phoned his uncle, and his uncle told him people had come to their home and asked about him. He said that it was the news from his uncle that prompted him to leave work suddenly and go to his friend [Mr A]’s house. In his written statement provided to the delegate he stated that when he realised the men would try to kill him, he fled from the hotel without telling his duty manager and goes on to state that on the same day at 11pm there were more than five people who went to his house in Colombo and threatened his relatives about asked for him. At the time of this incident at his home, he stated he was away from his home visiting his friend, [Mr A] and discussing whether to inform the police about the matter. At the interview with the delegate, the applicant said that he found out he was in trouble because when he returned to work the day after the incident in the [room] a friend had told him that the duty manager had informed Yoshita Rajapaksa. He did not refer to any phone calls from his uncle at the interview or in the written statement. At the hearing, the applicant did not refer to finding out that his duty manager might have disclosed the information from a friend or any person at his workplace.
I have difficulty understanding how the applicant could have been at work when men came to his house and approached his uncle, and also at [Mr A]’s house discussing whether to contact the police, and have concerns that the applicant has presented different accounts of how he found out that what he had told his duty manager may have been disclosed to Yoshita Rajapaksa. When I put my concerns to the applicant, he said that the men had come to his uncle’s house twice. I do not accept the applicant’s explanation, as he did not raise during his evidence at hearing that the men came to his uncle’s house twice until I pointed out the problem with his evidence, he did not refer to two visits to his uncle’s house in his written statement to the delegate or at the interview with the delegate. At the interview with the delegate, he said that the men went to his uncle’s house after he had gone to the police station (which is after the time he was at work, and after he had gone to [Mr A]’s house).
While I have considered that the incidents in question are claimed to have occurred over 10 years ago and have considered that the applicant gave evidence to the delegate at an interview held using WebEx primarily in English where a Tamil interpreter was present (whereas he used the interpreter at the Tribunal hearing), the applicant did not indicate that he was unable to recall what occurred. I have listened to the delegate interview and find that he was able to respond to the delegate’s questions, and the delegate repeated questions to ensure the applicant understood. I find that the applicant has provided conflicting accounts about how he found out his disclosure to his duty manager may have been leaked and when people came to the applicant’s uncle’s house, and he has attempted to alter his evidence to address my concerns, which detracts from the credibility of his claim that people came to his house to look for him following an incident in the hotel room.
Further, I have significant concerns about the plausibility of his claim to have been servicing a guest room when Yoshita Rajapaksa and his associates or supporters were discussing the cover up of a murder and that he overheard them discuss it. Given the significance of the matter, it may be expected that they would not discuss the matter in the room, or would take precautions to ensure that no one could hear them.
The applicant said that because he had entered and exited a few times, the people in the room were not sure if he was in the room or not, or they might have thought he had left the room. He said that they were already drunk. I noted that they were discussing a serious matter so it could be expected that they would take precautions. He said that it was a human mistake on their part, which led to him having to depart the country. He said that they have also made other mistakes which the media has found, and that the intelligence services have found it was a murder, so therefore mistakes have been made.
The applicant said that he was delivering food to the room and that he had to enter at least three times to deliver the amount of food which had been ordered. Given his repeated entries into the room, I find that the people in the room would have been aware of his presence and aware that he was delivering food and servicing the room. The applicant has said that he went into an adjoining room to clear plates, and later said he was cleaning glasses and filling up the minibar which took three to five minutes.
While I accept that it is possible that a room service attendant would check to see whether there were plates in another room which needed to be cleared and may also check the stock in the minibar, I find that he would have been noticeable to the occupants of the room given the number of times he had gone in and out, and because he would make noise when collecting plates and checking the minibar. Given the subject matter the applicant claims they were discussing, I find that with at least five people in the room, including the then President’s son, they would have ensured that the applicant had left the room. This is because I find that they would have been aware of his presence given the number of times he had entered the room. I have considered whether they were not aware of his presence because they had been consuming alcohol. However, I do not accept that the son of the then President of Sri Lanka and at least four of his associates (who the applicant was not able to name, but suggested they were from the CID or from a gang) would all have been so intoxicated to take such a risk and discuss the cover-up of the murder of a high profile Sri Lankan rugby player without first making sure that the applicant had completed his duties and left the room. Given the subject matter discussed, I find that at least one of the people in the room would have checked to make sure the applicant had finished his duties. I do not find it plausible that at the exact moment the applicant was cleaning plates and tending to the minibar in an adjoining room that the men would be discussing the cover up of a murder and within that time, they would say that it was a cover up and refer to the changing of the post-mortem report.
In addition to my concerns about the plausibility of the applicant’s claim to have overheard such a conversation, when I asked him what happened when he tried to leave the room, he said that they spoke in a threatening tone and told him not to tell anyone. In his written statement, he referred to them drawing guns on him. He did not make this claim at the hearing and instead said that he denied that he had overheard what they said, and that he also claimed that he didn’t speak Singhalese (a claim he did not make before the delegate or in his written statement). I find that if they had drawn guns on him, as claimed in his written statement, he would have referred to this at the hearing, given the seriousness of the incident. This omission further detracts from the credibility of the claim.
The applicant has provided inconsistent information about where he lived in Sri Lanka. In his protection visa application, he wrote that he lived at an address in Colombo from January 2009 until current. When I asked him about this address in his application, he said it was his friend’s, [Mr A], address. However, at the hearing, he said that he lived at his uncle’s house in Colombo from 2009 until early 2014 and that he then went to live with [Mr A]. He said that he had to change address a number of times, and provided a confusing account of his address history. He said at the hearing that he moved from his uncle’s house after the incident at his uncle’s house when men came to ask about him, and that the move happened the day after the incident. In his written statement provided to the delegate, he states that after the incident at the mosque and when he was approached at night after he finished work, he spoke to his family, they had a long discussion and he moved to a place where his uncle lives, and he started living in hiding from one place to another. The applicant has therefore provided two different accounts of where he lived: firstly, in his protection visa application, with his friend [Mr A] for a long period from 2009 until he moved to his uncle’s house so he could go into hiding, and then he moved between addresses, although I note he has also claimed in his written statement that he was living with relatives at the time of the incident with the men; and secondly, at the hearing with his uncle from 2009 until early 2014, and then he moved to [Mr A]’s house after the incident at his uncle’s house where men approached his uncle. I also note that when I first asked the applicant about his address history during the hearing, he said that he left [Mr A]’s house in March 2014 after the second incident, which he described as when a van approached him. I find that the inconsistency in the applicant’s evidence about where lived, and the time at which he moved addresses, adds to my doubts about the veracity of his claim to have overheard the conversation at the hotel and that he needed to move addresses to avoid detection.
I also have concerns about the applicant’s evidence in respect of his visit to the police station to report the incident at the hotel and at his uncle’s house. The applicant discussed his visit to the police station when he stated that he did not report the incident near the mosque. He said that he didn’t report the incident near the mosque but recalled that he did report the earlier incident at the hotel and at his uncle’s house. He clarified that he only gave a summary to the person at the reception of the police station and it was when he was waiting for a senior officer to come to talk to him that he decided to leave. He said that he felt safe to report this incident, and that he was young at the time. I put to him that if he felt safe to report the incident, why did he not complete making the police report. He said that at the time he was at the police station, his uncle called him and asked what he was doing. When the applicant told his uncle that he was going to report the incident, his uncle told him he was stupid and so the applicant left. However, the applicant in his written statement said that it was because he was informed that he needed to see a higher officer in charge that made him scared and that he ran away immediately. He did not refer to receiving a call from his uncle. He also did not refer to receiving a call from his uncle to the delegate, and said that he went to report the incident to the police at 1am in the morning, which took place before the men came to his uncle’s house to ask about the applicant. He said that he had told the person who prepared his statement, and wasn’t sure why it wasn’t in his statement, although he said he read the statement (prepared in English) before finalising it. I do not accept that the statement prepared by the applicant’s agent would not include such a detail, if he had told them, and find that the applicant has altered his evidence at the hearing by stating that it was his uncle who told him not to report to the police, whereas he has previously referred to the need to speak to a more senior officer as the reason he was scared and ran away. This provision of a different reason for why he left the police station causes me to further doubt the applicant’s evidence in this regard. I find that the applicant altered his evidence to try to address my concerns, however, the changing nature of his evidence has caused me to further doubt the veracity of his claims.
I have considered whether the applicant’s mental health affected his ability to recall evidence or present his case at hearing, and that the events occurred over 10 years ago. He responded to my questions quickly and confidently, and his responses indicated he understood my questions. I do not accept that his mental health accounts for the number of changes to his evidence outlined above. If the applicant was unsure about what happened in Sri Lanka or had forgotten, it would have been open for him to give such evidence. Rather, I find that his evidence at hearing reflects that he was describing events which were not a lived experience for him.
The applicant has claimed that he was approached by men in a van when he was going to the mosque and that he was also approached by men in a van when he was smoking a cigarette after he finished his shift at the hotel. The applicant has claimed that these incidents occurred in early 2014. He has claimed that he thinks the men who approached him and tried to kidnap him and harm him were connected to Yoshita Rajapaksa. I queried why he would be outside at night alone, smoking a cigarette. He has claimed that he felt safe in the hotel but later said that the location where he was approached when smoking a cigarette was up to 10 minutes’ walk from the hotel. I have concerns about these claims, given the applicant has claimed that he had been threatened by men connected to the Rajapaksas in the hotel room, men had come to his uncle’s house (on two occasions), and he had been chased into a mosque in the early morning when it was dark. I do not find it plausible that the applicant, in these circumstances, would take such a risk by going to a location by himself which was supposedly away from the safety of the [hotel] and smoke a cigarette in the early hours of the morning. He has claimed that he felt he was in danger and had to change his accommodation to avoid detection and harm, so I do not accept it is plausible that, given the claimed danger he was facing, he would go somewhere to smoke a cigarette in the early hours of the morning, rather than remain close to the [hotel] and take the staff transport home.
I also note that when the applicant was asked about these incidents by the delegate, he said that the incident where he was approached by the men when he was having a cigarette occurred first, and the mosque incident happened afterwards. In his written statement, he has indicated that these incidents occurred shortly after the incident in the hotel, which he has claimed took place in November 2013, as he states it was a ‘few days later’ after his visit to the police station and receiving a threatening call that he went to the mosque, whereas he has claimed at the hearing they occurred in early 2014. Given these concerns and those discussed above, I have significant doubts about the applicant’s claim that he was approached by people when he was walking to the mosque and also when he was smoking a cigarette.
While the applicant has claimed that he had to go into hiding following his report to his duty manger about what he claimed to have heard in the hotel room in November 2013, he continued to work at the [hotel] until June 2014 when he went to [Country 1]. I do not consider that the applicant’s actions are indicative of a person who went into hiding. He continued working full-time at the location where he claims he overheard the incident being discussed. He claimed that his duty manager disclosed the information to the Rajapaksas, so it is surprising that he would continue to work there given it would be possible for the duty manager to continue to report to the Rajapaksas or their associates about the applicant’s whereabouts. If the Rajapaksas and their associates wished to harm the applicant, they would have been able to speak to the duty manager and ask about the applicant and his shifts and/or his location, and they could have monitored him while he was at the hotel working full-time hours and approached him as he left the hotel.
During the time he was in Sri Lanka after the incident, the applicant did not spend all his time at the hotel, although he said he spent some nights at the dormitory. He was therefore not always within the hotel. While I have considered that the hotel has security, it would have been open for the Rajapaksas or their associates to track the applicant after he had left the hotel. The applicant has claimed that they did do so on two occasions (while he was smoking the cigarette and when he was going to the mosque), however I have significant concerns about these incidents for the reasons outlined above. If the applicant was fearful of the Rajapaksas and wanted to be in hiding, he would not have remained working at the hotel where the incident occurred and where they would know how to find him (either through their connection to the duty manager or by entering the hotel and asking for the applicant). Given their ability to track him and his concern about his safety, I also have concerns about his claim that he would complete a shift at the hotel and go to smoke a cigarette after his shift at a different hotel near the [hotel], where he could have been followed by the associates.
The applicant provided statements from his uncle and his friend, [Mr A], after the hearing. The applicant was on notice from the delegate’s decision that the credibility of his claims was in issue. As explained to the applicant, I may not be able to place much weight on witness evidence provided after the hearing. It was prepared with the knowledge of any concerns or issues raised during the Tribunal hearing.
He provided a statement from his uncle dated 12 December 2024. The statement was prepared after the hearing, after the applicant had given his evidence. In the statement, it is reported that the men visited the house twice, which was a claim the applicant made at the hearing for the first time to address concerns with his evidence raised above. Further, his uncle’s statement indicates that they found out about what had happened to the applicant at the hotel when the applicant returned home, not during a phone call from the applicant when he was at work (when the applicant said his uncle informed him men had come to the house) or when his uncle phoned the applicant when the applicant was at the police station about to report what had happened. There is no reference to the uncle making phone calls to the applicant while he was at work to warn him about what had happened or that he had phoned the applicant when he was at the police station. Given these discrepancies with the applicant’s account raised at hearing and the provision of the statement after the hearing when concerns about the applicant’s evidence had been raised, I place limited weight on the uncle’s witness statement. I find that it has been provided primarily to address my concerns raised at the hearing. It is not apparent why the statement from the uncle was not provided prior to the hearing. Given all my concerns, I do not find that it overcomes my credibility concerns raised above.

He also provided a statement from his friend [Mr A] dated 14 December 2024. The statement was prepared after the Tribunal hearing. In the statement, [Mr A] reports what the applicant had told him about the incident in the hotel room and that people went to his house. It does not refer to any other incidents, such as the incident at the mosque and when the applicant was outside after his shift at the hotel and was approached by people in a van, or that the applicant lived with [Mr A]. This is surprising given the applicant claimed to move from his uncle’s house and lived with [Mr A] for his own safety for a period after the hotel room incident in November 2013. While the statement refers to some of the details of the applicant’s claims (such as the incident in the hotel room), it is based on what the applicant told him and does not indicate that he witnessed any of the events in question. Given the timing of the statement and because it refers to what the applicant told him, it does not overcome my credibility concerns raised above. Accordingly, I have placed limited weight on the statement.
I note that the applicant was outside Sri Lanka from June 2014 until March 2016. While he has claimed that the change of government in 2015, which led to the defeat of Mahinda Rajapaksa,[4] meant that he thought he would be safe upon his return as the Rajapaksas would no longer hold significant political power, he also said that his contract in [Country 1] was ending and he couldn’t obtain residency there. When he returned to Sri Lanka, he knew that the investigation into the death of Wasim Thajudeen was in the news. Despite this, he said he returned to the [hotel] and worked there on a part-time basis while he completed the requirements to obtain a job on a [workplace]. He was in Sri Lanka from March 2016 until January 2017. During this time, he said he lived with a Christian family near where he was undertaking courses in relation to his job on the [workplace]. At the hearing he did not refer to living at any other addresses. He has claimed in his written statement, before the delegate, and at the hearing that he was shot at by two people on a motorbike in July 2017. I have significant concerns about the applicant’s activities upon his return to Sri Lanka in 2017 and whether he was shot at, as claimed. Firstly, given his concerns about the incident in 2013, I find his action of returning to the same hotel where the Rajapaksas and their associates may try to find him indicates that he was not concerned about being located. He was in Sri Lanka for approximately nine months, working at one location, studying at one location and living primarily in one location. These are not the actions of someone who appeared to be in hiding. Following the claimed shooting incident, the applicant did not say he changed his accommodation but said he waited and then returned to his accommodation with another person. I find it difficult to understand that if he was being targeted by the Rajapaksas’ associates, given the applicant’s activities in Colombo for nine months such as working in the hotel he had worked at previously and where the claimed the incident occurred, and attending courses, they attempted to harm him only once.
[4] Sri Lanka's Rajapaksa suffers shock election defeat - BBC News ( 9 January 2015, accessed 18 December 2024.
Given my concerns about the applicant’s evidence outlined above, such as his differing accounts of what happened the day after he claimed he overheard Yoshitha Rajapaksa and his associates discuss the death of Wasim Thajudeen in a hotel room, his differing accounts of where he lived and moved to address the claimed threat, his account of his visit to the police station, my concerns about the plausibility of his claim that Yoshitha Rajapaksa and his associates would discuss such a sensitive topic in a hotel room without first confirming that the applicant had left the room in circumstances where they would have been aware he had entered the room, his action of continuing to work at the hotel despite the claimed threat and my concerns about his claim that he would be alone at night smoking a cigarette given the claimed earlier incidents, I do not accept the applicant’s claim that he overheard a discussion at the [hotel] about Wasim Thajudeen’s death. I do not accept that he was threatened or harmed by anyone in connection to overhearing a conversation. As I do not accept that this primary incident occurred, I also do not accept that he was chased near a mosque or approached by people in a van when he was outside late at night smoking a cigarette after a shift at the hotel. As I have not accepted that the applicant overheard any discussion while working at [hotel] in November 2013, I therefore do not accept that that the claimed shooting took place. I also do not accept that he received a phone call from an unidentified caller after he visited the police station or that four unknown people came to his house in 2016 and forcefully entered the house looking for him and his relatives (which are claims he made in his written application).
Given I have not accepted the applicant’s claims, I do not accept that he faces a real chance of serious harm, or a real risk of significant harm, from the Rajapaksas or anyone connected to the Rajapaksas in relation to the claimed incident in November 2013.
When discussing the situation for Muslims in Sri Lanka at the hearing (which is outlined in detail below) the representative said that the applicant had reported to him that when he was going through the airport to come to Australia, he was stopped and that they went as a group. He then clarified that the applicant had paid a bribe so that he could exit the country through the airport because he was not safe (given he had claimed to have been of interest to the authorities), and that when he left the country, he was able to do so because he had paid a bribe. The applicant did not claim in his written statement or during the hearing that he had to pay a bribe to leave the country. I have not accepted that the applicant was of interest to the Rajapaksas or any authorities because I do not accept that the incident in November 2013 happened, and consequently I do not accept that the applicant paid a bribe or that he was able to leave the country because he paid a bribe.
Fear of harm as a Muslim
The applicant has claimed that he fears harm in Sri Lanka because he is a member of the Muslim minority.
DFAT reports that Muslims live throughout Sri Lanka, including in Colombo where the applicant lived before coming to Australia, and that larger communities are located in the east, which is where the applicant’s family is located and where he grew up.[5] Muslims are active in business, industry, the civil service, and politics in Sri Lanka.[6] There are also Muslim political parties which represent the community’s interests in parliament.[7]
[5] Department of Foreign Affairs and Trade, Country Information Report – Sri Lanka (2 May 2024) (DFAT Report), para 3.29.
[6] DFAT Report, para 3.30.
[7] DFAT Report, para 3.30.
There have been reported tensions between the Sinhalese Buddhist majority and the Muslim minority, and that these tensions have increased since the end of the civil war in 2009, including sporadic episodes of violence.[8] Muslims report being unfairly targeted since the Easter Sunday terrorist attacks in April 2019, including in the form of large-scale arrests and other official practices perceived as discriminatory.[9] However, in-country sources have informed DFAT that the most acute pressures experienced by their community following the Easter Sunday terrorist attacks have subsided and Muslims are generally able to practise their faith freely.[10] Muslims suspected of extremism, those engaged with the international community, and community activists may be subject to monitoring by authorities.[11] Sinhala Buddhist nationalist groups are reported to target Muslims, including through hate speech.[12]
[8] DFAT Report, para 3.31.
[9] DFAT Report, para 3.32.
[10] DFAT Report, para 3.35.
[11] DFAT Report, para 3.36.
[12] DFAT Report, para 3.38.
DFAT assesses that that Muslims face a moderate risk of official and societal discrimination, in the form of harassment and monitoring by security forces and organised disinformation campaigns by Sinhalese nationalist groups, and that Muslims face a low risk of official or societal violence, including in Colombo, where the community is well established and integrated, and are broadly free to practise their religion.[13] Muslims suspected of extremist views and/or association with groups deemed to be extremist face a high risk of monitoring, arrest and detention, including under the Prevention of Terrorism Act.[14]
[13] DFAT Report, para 3.39.
[14] DFAT Report, para 3.39.
I note that the applicant has not claimed to have been involved in extremism or to have been monitored by the state because of his religion. He grew up in a predominantly Muslim area of Sri Lanka and then lived in the capital, Colombo, where there is an established Muslim community. He was able to practise his religion freely, obtain employment in a [hotel] in Colombo.
The applicant has not reported being discriminated against in terms of employment or housing with Sri Lankan society, having lived with relatives, at the dormitory in the hotel and also with a Christian Sri Lankan family. The applicant’s experience appears to be consistent with the information which indicates that Muslims live in Colombo and that larger communities (where his family is based) are in the east of the country.
I noted that the applicant did not appear to have been discriminated against because of his religion, and had not been targeted based on his religion. He claimed in his protection visa application that he was targeted by the Rajapaksas because of what he overheard in the hotel room, and also because he was a Muslim. I have not accepted that the incident in the hotel room occurred.
While there is a reported moderate risk of official and societal discrimination, in the form of harassment and monitoring by security forces and organised disinformation campaigns by Sinhalese nationalist groups, the applicant does not appear to be of interest to the authorities and has not been involved in extremism. He has not reported that any of his family members are of interest to the authorities.
The applicant responded to the country information put to him that indicates that Muslims are generally able to practise their religion freely and that it did not appear that he would face harm if he returned because of his religion. He said that if you look at the history of Sri Lanka, the Muslims form a small community, and he referred to a Muslim doctor being blamed for giving medication which affected the reproduction of Sinhalese population. He said the doctor continues to be targeted and before the election he was released but Sinhalese monks are asking the government to arrest him. He said that ethnic conflict could start anytime in Sri Lanka and there is no representation for Muslims.
He and his representative also referred to the owner or CEO of the telecommunications company which had recordings of phone conversations relevant to the death of Wasim Thajudeen, which are reported to have been destroyed, and that this person had been appointed as head of the digital economy. The representative queried how someone who was the CEO of the telecommunications company bring justice for past incidents.
His representative referred to a Minister Lohan Ratwatte who was a state minister in the Rajapaksa government. They said that they have suppressed or destroyed evidence about the case, and that the current government promised to investigate issues, but one man was shot because he held evidence regarding the matter. He said that the opposition is in the process of destroying evidence about the case such as burning a building.
The representative noted that there are no Muslim Cabinet Ministers in the current government, and that this is a serious concern.
While I accept that the applicant is a member of a minority group which has been targeted in the past by some elements in Sri Lankan society, I have to consider the situation for the applicant. The applicant is a Muslim who was employed in a [hotel] from 2009 until 2014 and again in 2016, he has friends who are not Muslim and lived with a Christian family in Colombo in 2016. He has not reported having any difficulties practising his faith or any issues with his employer or non-Muslim friends because of his faith. He referred to [Mr A], who is not Muslim, as his best friend. He has not been of interest to the authorities in the past because of his religion and he did not appear to fit into any categories of persons of interest to the authorities. I do not accept that the Sri Lankan authorities would monitor him because of his religion.

100. While it may be uncomfortable to have Sri Lankan nationalist groups make disparaging comments about Muslims (and the applicant gave the example of a Muslim doctor who has been targeted by Sinhalese Monks), there is no information to indicate that the applicant has a particular profile which would mean he would be targeted or would be of interest to Sinhalese nationalist groups. While it would be disconcerting to read or hear negative messaging about Muslims, I do not accept that organised disinformation campaigns by Sinhalese nationalist groups about Muslims generally would amount to serious or significant harm for the applicant, given he would not be personally targeted and he has not raised any concerns in this regard.
101. I find that the applicant will not be of interest to the authorities, or any nationalist groups, or any persons, in Sri Lanka because of his religion. I find that he will be able to find employment as he has done previously, and that he will be able to practise his religion freely. I do not accept that he will face a real chance of serious harm or real risk of significant harm now or in the reasonably foreseeable future on the basis of his religion.
Other matters
102. I have considered the applicant’s situation cumulatively, and find that he is a Sri Lankan Muslim who has considerable experience in the hospitality sector. I have not accepted his main claim about overhearing a discussion in a hotel room in November 2013, and I do not accept that he will be of interest to the Sri Lankan authorities because of his religion or for any other reason. Upon return to Sri Lanka, I find that the applicant would be able to find employment as he has done previously when he returned from [Country 1] and would have the support of his family. These would be protective factors in terms of his mental health which, having regard to the letter from his psychologist, has reportedly been affected by the uncertainty of the visa application and review.
Conclusion
103. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
104. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

107. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 9 December 2024
Representative for the Applicant: Mr Nizam Jazeel C Nijamudeen (MARN: 1382750)
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…